2003AP784 & 2003AP1413 Johnson v. Rogers Memorial Hospital, Inc., et al.

We conclude that Charlotte did not waive her therapist-patient privilege, as she did not disclose any significant part of a confidential matter or communication. We first consider the limited authorization Charlotte signed for disclosure of certain medical records and the accompanying records the Johnsons received as a result. Charlotte consented to release the “specific information listed here,” which was limited to “medical (physical) tests; medications prescribed; general progress.” Because Charlotte consented to disclose these records, any accompanying privilege associated with these records is waived. However, Charlotte’s hospitalization was for psychiatric treatment, not physical or medical treatment. Because she did not give such consent, she could not have waived her privilege as to any confidential matter or communication with respect to those records. Similar reasoning applies to the medical bills. Regarding Charlotte inviting the Johnsons to the therapy session to confront them about the abuse, Wis. Stat. § 905.04(1)(b) protects communications made to “persons who are participating in the diagnosis and treatment under the direction of the . . . psychologist . . . or professional counselor, including the members of the patient’s family.” The fact that another person was in the room, the so-called “silent advocate,” does not result in a waiver either. Nor does the affidavit of a friend, allegations she made to obtain a restraining order, or her communications to an attorney regarding the possibility of commencing a civil lawsuit against her parents. …

In Sawyer v. Midelfort, 227 Wis. 2d 124, 129, 136, 595 N.W.2d 423 (1999), we recognized a parent of an adult child’s third-party professional negligence claim against a therapist for therapy that resulted in implanting and reinforcing false memories of sexual abuse in a child. … We agree that public policy requires that the therapist-patient confidentiality and privilege give way to Sawyer third-party negligence claims, but only in limited circumstances.

“While we recognize the benefit from allowing therapists to diagnose and treat victims of sexual and physical abuse as children, no utility can be derived from protecting careless or inappropriate therapists and their practices. The costs are simply too severe: the therapist is allowed to continue negligently ‘treating’ others, the patient remains disillusioned by the falsehoods, and the accused suffers the torment of being branded a child-abuser.”

We are still concerned with maintaining and protecting the therapist-patient relationship to the greatest extent possible. We further conclude that an in camera inspection of the patient’s records is necessary.

“We conclude the plaintiff must first commence a reasonable investigation into the type of therapy the plaintiff’s child underwent before moving for an in camera review. This includes exploring whether the child has already waived the privilege or is otherwise willing to disclose the records. After the investigation, the plaintiff must set forth a good faith fact-specific basis demonstrating a reasonable likelihood that the records contain information regarding negligent treatment. This showing cannot be based on mere speculation or conjecture as to what information is in the records, and the information sought cannot be merely cumulative to that already available to the plaintiff. As part of the showing, the plaintiff should present evidence to provide the trial court with features of the negligent therapy believed at issue to help guide its in camera review. …. If the plaintiff establishes a reasonable likelihood that the records contain information regarding negligent treatment, the circuit court must proceed to conduct an in camera review regardless of the victim’s lack of consent. …

“We note that our procedure not only allows those who have been wrongfully accused a way to proceed with a Sawyer cause of action, but also ultimately enables the court to identify negligent therapists, which can only work to protect future potential victims from such negligent therapy. Bearing this in mind, we conclude that the victim cannot impede the claim. … If the court finds information relevant to the plaintiff’s claim, the court shall turn that information, and only that information, over to the plaintiffs. The therapist-patient privilege is also overcome, but only with respect to those disclosures. All other records not disclosed retain confidentiality and privileged status.”

Reversed and remanded.

PROSSER, J. (CONCURRING): “I write separately to emphasize that in this case, numerous undisputed facts show that Charlotte waived her privilege of confidentiality by voluntarily disclosing a significant part of the privileged matter. …

“[T]he grounds for waiver may be summarized as follows: (1) Charlotte disclosed that she entered therapy due to an eating disorder and alcohol abuse before ever having a flashback; (2) she underwent psychotherapy; (3) she was the subject of hypnosis as part of her therapy; (4) she experienced flashbacks and body memories of childhood abuse; (5) she purchased The Courage to Heal, the ‘Bible’ of repressed memory therapy; (6) she ‘confronted’ her parents during therapy sessions; (7) she kept a journal and did artwork detailing her experiences; (8) she filed a restraining order against her parents and cut off all contact with them; (9) she changed her name; and (10) she threatened to file a civil lawsuit against her parents, and as part of that threat, her attorney referenced repressed memories. Reference to the literature discussed above reveals that all these events are hallmarks of recovered memory therapy.

“When the grounds for waiver are considered singly, it is perhaps possible to conclude that Charlotte did not disclose any significant part of the privileged matter. Considered together, however, it is difficult, if not impossible, to escape the conclusion that she voluntarily admitted undergoing recovered memory therapy.”

WILCOX, J. (CONCURRING IN PART, DISSENTING IN PART): I do not agree with the lead opinion’s decision to set up an in camera review procedure of Charlotte’s records. However, I wholeheartedly join Justice Prosser’s concurrence insomuch as it recognizes that “in this case, numerous undisputed facts show that Charlotte waived her privilege of confidentiality by voluntarily disclosing a significant part of the privileged matter.” As such, I would allow the Johnsons access to Charlotte’s medical records.

BRADLEY, J. (DISSENTING). “The concurring opinion in Sawyer wrote separately to ‘reiterate the narrow scope of the majority’s decision based on the unique facts of [the] case.’ Id. at 162 (Wilcox, J. concurring). It sounded a caution that the majority opinion, if expanded, would ‘place an unreasonable burden on therapists’ treatment choices’ and undermine the confidentiality that is essential to the patient-therapist relationship. Id. The concurrence forewarned of a future day when ‘[other suits] will soon follow’ and of the risks attendant to any future expansion of the majority’s limited holding. Id. Regrettably, with this case, that day has now arrived.

“The lead opinion may have an admirable goal, but its resolution is not a satisfactory means to that end. As Justice Wilcox cautioned in his Sawyer concurrence, this result jeopardizes patient-therapist relationships: ‘This result would, we believe, place therapists in a difficult position, requiring them to answer to competing demands and to divide their loyalty between sharply different interests . . . . [T]herapists would feel compelled to consider the possible effects of treatment choices on third parties and would have an incentive to compromise their treatment because of the threatened liability.’ [Cite.]

“In the end, this is a difficult case and the position the Johnsons find themselves in is not a comfortable one. But this court’s sympathy for the plaintiffs should not force our hand. …Ultimately, I agree with the court of appeals’ determination that ‘we have been presented with no argument that causes us to conclude that the Johnsons’ interest in financial compensation for the injury they claim to have suffered should trump Charlotte’s right to maintain the confidentiality of her privileged communications and health care records.'”

Dane County, Moeser, J., Butler, J.

Attorneys:

For the Appellant: William Smoler, Monona

For the Respondent: Laurie J. McLeroy, Milwaukee, David McFarlane, Francis X. Sullivan, Bradway A. Liddle, Jr., Sarah A. Zylstra, Madison